Marina Enterprises Vs Commissioner, Customs, Central Goods & Service Tax and Central Excise (CESTAT Delhi)
Admittedly the appellant have sold the goods in India after importing and have paid sales tax on the said goods. Admittedly, they are registered with the Sales Tax Department having TIN number and have charged sales tax in their sales bill. Further, from the sample copy of sales bill produced before this Tribunal, it is evident that appellant have not given break-up of additional duty or SAD in their sale bill. Further, the appellant have mentioned on the body of sale invoice that – no benefit of additional custom duty levied under subsection (5) of Section 3 of the Customs Tariff Act shall be admissible.
Thus, evidently the buyer of the goods from the appellant cannot take the benefit or credit of SAD of Customs, which was paid by the appellant – importer at the time of import.
Considering the rival contentions and in the facts and circumstances, it is evident that it is the appellant – importer who has borne the incidence of special additional duty (SAD) and has not passed on the same to the buyer of the goods.
Accordingly, I find that the learned Commissioner (Appeals) have erred in holding that the refund claim was hit under the doctrine of unjust enrichment. Accordingly, this appeal is allowed and the impugned order is set aside. The appellant is held entitled to refund of the amount of SAD Rs.5,43,443/-.
FULL TEXT OF ORDER OF CESTAT DELHI
Heard the parties.
2. The issue in this appeal is whether the refund claim of Special Additional Duty (SAD) by the appellant – importer, whether the same is hit by unjust enrichment.
3. The appellant imported goods for resale. Being entitled to refund of SAD, which is deposited at the time of import in lieu of sales tax, the same is refundable when the importer subsequently sells the goods in India and thereafter deposits sales tax with the Sales Tax Department. Upon such resale, the appellant became entitled to refund of the SAD in terms of Notification No. 102/2007-Cus. dated 14.09.2007. The appellant has filed refund claim on 21.08.2017 as under:-
